Calcutta High Court
Naresh Chandra Ghosh & Ors. vs Archit Vanijya Viniyog Ltd. & Ors. on 27 September, 1998
Equivalent citations: (1999)3CALLT269(HC)
Author: S. B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S. B. Sinha, J.
1. All these appeals arising out of a common Judgment and order dated 29.1.98 passed by Sri S. Baidya, 9th Civil Judge at Alipore. District South 24-Parganas in Title Suit No. 89/81 were taken up for hearing together and are being disposed of by this common jdgement. The basic fact of the matter is not in dispute.
2. The properties in suit being premises No. 9/4, Middleton Row, Calcutta was transferred to Smt. Prativa Ghosh and Smt. Pritibala Ghosh by the Offical Trustee of Bengal by an Indenture dated 23rd May, 1947. In the year 1961 Balai Chand Ghosh, the father-in-law of the aforementioned Smt. Prativa Ghosh and Smt. Pritibala Ghosh filed a suit alleging that he was the legal owner of the property and the said Prativa Ghosh and Pritibala Ghosh were his Benamdars. The said suit was decreed by a judgment and decree dated 31.3.1962. An appeal taken against the said Judgment and decree was dismissed by an order dated 29.9.77 by this Court. Allegedly on 4.1.1978 Balai Chand Ghosh executed a Power of Attorney in favour of Arindam Ghosh. An agreement dated 12.6.79 was entered into by and between Balai Chand Ghosh through his constituted Attorney and Vidya Chandra Jagmohandas Shah and Jawhwant Pranjivan Doshi for sale of the said premises at a rate of Rs. 55,000/- per cottah on 25th December, 1979 in favour of said Sri Arindam Ghosh. On 21st July, 1980 a supplementary agreement was executed though Sri Arindam Ghosh whereby certain terms and conditions of agreement were varied. Balai Chand Ghosh died on 16.8.80 leaving behing his two wives Nirmala Bala Ghosh, Mamta Rani Ghosh and other sons and daughters.
3. Sri Arindam Ghosh, as the alleged executor to the estate of Balai Chand Ghosh applied for grant of probate of the purported last will and testament dated 25.12.79 and by a judgment and order dated 2.9.81 this court granted probate In his favour. On 4th August, 1981 Sri Arindam Ghosh as sole executor of estate of Balai Chand Ghosh conveyed the premises In question measuring an area of 1 Bigha 7 Cottahs 5 Chittacks and 32 sq. ft. of land on a consideration of Rs. 9,54,632/- only in favour of M/s. Crystal Developers. On 21st September. 1981 the legal heirs of Balai Chand Ghosh filed a suit for partition in the 9th court of sub-ordinate Judge at Alipore which was registered as Title Suit No. 89/81. A public notice was issued in The Statesman' on 2nd March. 1982 to the effect that no person has any right to deal with the said property as the same is subject matter of Title Suit No. 89/81. Upon appearance of defendant Nos. 1 and 2 in the said suit and application for appointment of Receiver was filed on 27th August, 1982 wherein only the defendants disclosed that Balai Chand Ghosh have executed a will. An application for revocation of the said will was filed by the plaintiffs of the said Title Suit No. 89/81, inter alia, on the ground that Probate granted on 29.7.81 was obtained without serving any notice to legal representatives of Balai Chand Ghosh who are necessary parties as also on the ground of forgery. The said application for revocation of grant of Prodate was allowed by a Judgement an order dated 9th July. 1987 which was brought to the notice of the learned Judge in the said Title suit No. 89/81. Despite the fact that defendant No. 2 Arindam Ghosh also filed an application that he had taken steps for revocation of the order dated 9th July. 1987 passed by Hon'ble Justice A. K. Sengupta and prayed for adjournment for six weeks. M/s. Crystal Developers allegedly sold the said property by reason of a deed of conveyance dated 4.8.91 to respondent Nos. 15 to 20.
4. A receiver was appointed by the Assistant District Judge, 9th Court. Alipore in respect of the said properties. On 10th September.
1993 an application was filed by the plaintiffs under Order 1 Rule 10 CPC and under Order 6 Rule 17. An application under Order 39 Rule 1 CPC was also filed on that date praying for an injunction against the defendants restraining the transferees from changing the nature and character of the suit property. As the will so probated was not surrendered by the executor of the will, a contempt application was also filed.
5. The learned trial Judge refused to pass an interim order of injunction where against an appeal being F.M.A.T. No. 2973 of 1994 was filed and an interim injunction was granted by this Court on 17.5.95. In the contempt proceeding the executor Arindam Ghosh filed an affidavit denying and disputing that he had transferred 9/4, Middleton Row to third party on the basis of Probate but in a second affidavit he confirmed the sale of the said premises without furnishing the details thereof. By an order dated 9.8.95 R. Pal, J. held that the alleged contemnor had committed contempt of Court and also remarked that he had also filed a false affidavit. An order dated 22.5.96 was passed by the Assistant District Judge, Alipore granting order of status quo and on 8th July, 1996 the Receiver took possession of the property.
6. The defendants No. 15 to 20 being subsequent purchasers appeared in that suit on 12th September. 1996 and filed an application under section 151 CPC and under Order 39 Rule 4 CPC. An application filed by the respondent No. 19 under Order 39 Rule 4 was rejected by an order dated 5.6.97 whereafter a fresh power was filed by the defendant No 15 to 20 and a fresh application under Order 39 Rule 5 and section 151 of the Code of Civil Procedure was filed by the defendant No. 15,16,17,18, and 20, an objection thererto was filed by the plaintiffs on 16th July, 1997.
7. The defendant No. 1 was one of the wives of late Balai Chand Ghosh. In her objection she allegedly stated that her husband never entered into an agreement for sale nor executed any Power of Attorney nor executed a will and the same are forged documents and, thus. Crystal Developers did not acquire any right, title and Interest in terms thereof. However, by an affidavit filed on 26th November, 1997 the said defendant No. 1 denied that any objection was filed by her on 25.9.97 whereupon the planitiffs filed an application to cross-examine her on the same day but the said application under Order 19 Rule 2 CPC was rejected where against the plaintiff filed a Civil Revision Application before this Court which was marked as C.R. Case No. 471/97. By an order dated 19th December, 1997 this court while setting aside the said order directed that the learned Judge would be at liberty to proceed with the application under Order 29 Rule 4 of the Code of Civil Procedure and he would also be at liberty to pass a final order. Pussuant to the said direction, the impugned order has been passed.
8. Mr. Sudhish Dasgupta. Mr. Shyama Prasanna Roychowdhury and Mr. A. Banerjee the learned counsels appearing on behalf of the appellants, inter alia, submitted that the impugned order cannot be sustained as the learned trial Judge had purported to have disposed of the entire suit. The learned counsels submitted that the question as to whether in the facts and circumstances of this case section 297 of the Indian Succession Act would be applicable was required to be decided in the suit itself and, thus the learned Judge could not have arrived at the impugned findings only on the decision of a learned Judge of this Court in Akshay Kumar Pal v. Nandalal Das reported in ILR(1946)1432. The learned counsels would contend that in this case the plaintiffs had made out a case for fair trial and, thus, the learned court erred in discharging the Receiver and also vacating the order of interim injuction. The learned counsels would further urge that by reason of a fraudulent act, the said Arindam Ghosh cannot divest the original parties to the said partition suit from their right, title and interest in the suit property which extend the 10/11th share of the suit property. The learned counsels in support of their contentions relied on Pundit Paryrag Raj v. Goukaran Peshad Tewari and Ors. reported in 6 CWN 787, Gopal Dass Agrawallah v. Budree Dass Sureka and Anr. reported in 10 CWN 662, Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Base and Ors. , Insrail & Ors. v. Samser Rahman and Ors. reported in 19 CLJ 47, Gangubai Bablya Caudhary & Ors. v. Sitaram Bhalochandra Sukhtankar & Ors. and Dalpat Kumar and Anr. v. Prahlad Singh and Ors. .
9. Mr. S. Pal, the learned counsel appearing on behalf of the contesting respondents, on the other hand, submitted that keeping in view the fact that the sale of the premises in question had taken palce prior to institution of the partition suit by the plaintiffs-appellants, the provision of section 297 Is squarely attracted. The learned counsel submitted that the Probate granted in favour of Arindam Ghosh was vacated only on the ground of lack of citation and, thus, this court has not found that any forgery has not been committed. Mr. Pal would urge that before the learned trial Judge only a question of law was agrued and in that view of the matter it cannot be said that the learned trial Judge erred in relying upon a decision of this Court which was binding on him. According to the learned counsel this Court while exercising its appellate jurisdiction would only see whether the order impugned has been passed in proper exercise of the discetion. According to Mr. Pal, even in case of forgery, section 297 would apply and in support of his aforementioned contention and in support of the said contention reliance has been placed on Debendra Nath Dutt v. The Administrator General of Bengal and Ors. reported in Law Report 35 Indian Appeals page 109 = 12 CWN 802, ILR 33 Cal. 713 and Newsan v. Shelly reported in 1914(2) Chancery 13. It was futher submitted that the balance of convenience lies in favour of his clients a multistoreyed building has been constructed after obtaining a sanction therefor from the Calcutta Munipal Corporation as far back as on 13th February. 1993. The learned counsel submitted that even third party interest had already been created in the property, as various persons had purchased flats and in that view of the matter, the persons who had paid a huge amount should not be deprived of from the investment made by them. The learned counsel pointed out that the appellant have not approached the learned trial Judge within a reasonable time as they filed their application for injunction after 12 years from the date of sale of the property and second application was filed after 4 years of rejection of the first application.
10. The basic fact of the matter as has been narrated hereinbefore being not in dispute, the question which arises for consideration before the learned trial Judge was as to whether the subsequent purchasers should have been restrained from raising any construction and/or whether Receiver should have been appointed.
11. Section 297 of the Indian Succession Act reads thus :-
"Payment to executor or adminstrator before probate or administration revoked. When a grant of probate or letters of adminstration is revoked, all payments bona fide made to any executor or adminstrator under such grant before the revocation, thereof shall, notwithstanding such revocation, be a legal discharge to the perosn making the same, and the executor or administrator who has acted under any such revoked grant may retain and reimburse himself in respect of any payments made by him which the person to whom probate or letters of administration may afterwards be granted might have lawfully made."
12. A bare persual of the aforementioned provisions would show that section 297 can be invoked in a case of this nature only upon finding of the fact as to whether the transaction entered into by the executor or an adminstrator after the grant of probate or Letter of Administration is bona fide or not.
13. Although a great deal of argument has been advanced as regard the correctness of the decision of this court in Akshay Kumar Pal v. Nandalal Das reported in 1LR (1946)1 432, as at present advised, we do not consider it necessary to do so as the final Judgment in the partition suit is yet to be delivered but we may only notice that Das, J. (as the learned Chief Justice then was ) upon taking into consideration various decisions held :-
"On a construction of the relevant provisions of the Indian Succession Act and in view of the modern decisions it is, to my mind, impossible to accede to Mr. Banerjee's arguments and to hold that on revocation of a grant which had been obtained by suppression of a will appointing an executor the grant becomes void ab initio. In my judgment, the revocation makes the grant void as from the date of revocation and the question whether the mesne delalngs of the executor or administrator under the revoked grant will stand good or not depends upon whether they were done in due course of administration or with persons acting in good faith. In this view of the matter I have how to consider the fact of this case."
14. In that case there existed two wills and grant of probate in the first will was made without disclosing the second one. It appears from the Judgment that on consideration of all those circumstances it was held that passing of consideration before the Registrar was a mere show and the conveyance was a mere device to frustrate the executor's claim under the later will. On the evidence adduced before the learned Judge, His Lordship was satisfied that the plaintiffs are not the bona fide purchasers of the third share of Jagannath for valuable consideration without notice of the later will and the purported sale was not a genuine sale in due course of administration. The suit was, therefore, dismissed. The said judgment, therefore, itself is a pointer to show that the question as to whether a person is a bona fide purchaser or not has to be arrived at only at the final stage of the suit Inasmuch as such a question can be determined only upon adduction of evidence both oral and documentary and upon consideration of the circumstances attending thereto.
15. In Debendra Nath Dutt v. The Administrator-General of Bengal and Ors. reported in Law Reports 35 Indian Appeals 109 = 12 CWN 802.
although benefit of section 297 was extended even to a case of fraud, the Judical Committee held :-
"The case of the Appellant Dutta, who alone has appealed to His Majesty, as presented to this Board was that the letters of administration granted to Cowle, having been annulled by the court on the ground of fraud must be regarded as a mere nullity from the beginning: that Cowle, therefore, never was Administrator and that the bond, so far as the sureties were concerned, was void and of no effect: for the sureties undertook to be responsible for a real Administrator, not for a person assuming to act in a capacity which he never possessed and which the Court could not have conferred conferred upon him. The case was argued very ably by the learned counsel for the Appellant who said everything that could be said on his behalf. But there is really no substance in the Appellant's contention. So long as the letters of administration granted to Cowle remained unrevoked, Cowle, although a rouge and an impostor, was all intents and purposes Administrator. He, and he alone, represented the deceased in India. His receipts were valid discharges for all moneys received by him as administrator. As Administrator he collected the assets belonging to the deceased in India, and he misappropriated the assets which he so collected. For his acts and defaults as Administrator the appellant and his co-surety became and must remain responsible."
16. The ratio of the said decision is open to question in view of various decisions of the Apex Court of India wherein it has been held that fraud vitiates all solemn acts and for that purpose even compliance of natural justice is not necessary. For example see Damodar Ramnath Alve v. Gokuldas Ramnath Alve and Ors. reported in 1997(3) ICC 154 and State of T.N. & Ors v. A. Gurusamy .
17. In Pundit Prayrag Raj v. Goukaran Pershad Tewari & Ors. reported in 6 CWN 787, a Division Bench of this Court keeping in view the fact that although no question of fraud was remained nor was permitted to do so and the appeallate stage served :-
"And lastly we must observe that in this case the will having been declared to be a forgery, and, therefore, void ab initio, any acts done by the lady under any title created by that will must be held to be in law void (see in this connection Williams on Executors, 9th Ed., P. 501)"
18. In Gopal Dass Agarwallah v. Budree Doss Sureka and Anr. reported in 10 CWN 662, Woodroffe. J. observed :-
"In the present case also, the will appears to have done nothing more than appoint the two persons I nave named guardians and next friends. There being no appointment of executor or executrix in the will, the case comes within the rule laid down in Boxall v. Boxall reported in 27 Ch. D. 220. In which it was held that a grant of letters of administration obtained by suppressing a will containing no appointment of executors is not void ab initio and accordingly a sale of leasehold by an administratrix who had obtained a grant of adminstratlon under such circumstances to a purchaser who was ignorant of the suppression of the will was upheld by the Court, although the grant was revoked after the sale.
It is now suggested that the defendant knew of the alleged suppression of the will by the Plaintiffs father and as I have said all charges of fraud made against the defendant Budree Dass Sureka have been withdrawn".
19. In Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Base and Ors. , the apex court has held that when the will has not been probated, section 213 of the Act bars a person from establishing a right in his testator as a legatee under the alleged will.
20. We have referred the aforementioned cases only for the purpose of showing that applicability in law will depend upon the determination of fact in each case. Mr. Pal, therefore. Is not correct to contend that before the learned trial Judge only a pure question of law had been raised. As indicated hereinbefore, the question as to whether section 297 of the Indian Succession Act would be applicable in the facts and circumstances of the case or not itself being a question of fact, the palintlffs must be held to have made out a case for going to trial. In the event it is held in the suit, that section 297 of the Indian Succession Act was not attracted there cannot be any doubt whatsoever that in a given case a co-sharer in a partition suit may be entitled to an order of injunction as was granted in Israil and Ors. v. Samser Rahman and Ors. reported in 19 CLJ 47.
21. There cannot further be any doubt that each of such cases the plaintiff not only must show existence of a prima facie case but also must establish that the balance of convenience is in their favour. They have further to plead and prove that in the event the prayer for injunction is refused, they would suffer Irretrievable injury. Irretrievable injury, however, must be held to mean a substantial injury. Compensation can be granted to a mother for loss of her only child but that does not mean that by granting such compensation, the mother has adequately been compensated as no amount of monetary compensation can be said to be enough so far as the loss suffered by mother is concerned.
22. In the instant case, however, we cannot brush aside one fact that admittedly a multi storeyed building has been constructed. Such a multi-storeyed building could not have been constructed in a short time. The plaintiffs or other parties to the partition suit who are fighting out the matter so bitterly must in normal circumstances be held to have knowledge of all such ongoing constructions. They, therefore, ought to have moved the learned trial Judge at an appropriate stage. The plea of Ignorance as sought to be set up by Mr. Dasgupta cannot be accepted. However, while considering the respective balance of convenience and Inconvenience of the parties the court is bound to consider their respective cases and arrive at a just solution. An order of injunction is granted primarily with a view to preserve the property in suit. During pendency of an application for injunction, a party to the its should not normally be permitted to enter into such transactions or take such actions which may render the decree ultimately passed by the court in favour of a party a negatory one. The Court is also bound to pass an order so that multiplicity of proceedings be avoided.
23. Keeping in view the aforementioned fact and situation we are of the opinion that although the palintiffs are not entitled to any order of injunction in the manner as has been prayed for by them but the added respondents should be restrained from creating any third party interest where such third party Interest not yet created and should further directed to put any party in possession. In the event such third party interest had been created the concerned persons should be called to take possession of the flats purchased by them only upon filing of an undertaking that he or they shall vacate the premises in the event the suit is decreed. We are of the considered view that keeping in view the principles adumbrated in section 52 of the Transfer of Property Act, the transfers made by the M/s. Crystal Developers in favour of the defendant No. 15 to 20 shall be subject to the result of the suit and thus, any action taken by them in furtherance of any transaction made by them with others relying on or on the basis of the said deed of conveyance dated 4.8.81 shall also be subject to the restrictions and conditions as contained in section 52 of the Transfer of Proerty Act. We are, however, of the opinion that the learned Trail Judge. In the facts and circumstances of this case has rightly held that it is neither just nor convenient to appoint a Receiver as one of the paramount considerations for such order is that a person who is in execlusive possession of the property should not normally be dispossessed in a simple suit for partition. It is not a case that the properties are in medio.
24. Keeping in views the facts and circumstances of this case we direct the learned trial Judge to dispose of the usit at an early date and not later than six months from the date of communicaiton of this order. All the defendants must file the written statements, if not already done, within three weeks from date and issues should be framed within one week thereafter.
These appeals and the applications are disposed of with the aforementioned directions but in the facts and circumstances of this case there will be no order as to costs.
P. K. Samanta, J.
25. I agree.
26. Applications disposed of